Law Commons^™

Federalism, Mandates And Individual Liberty, John T. Valauri

John T. Valauri

FEDERALISM, MANDATES AND INDIVIDUAL LIBERTY ABSTRACT This article presents the missing federalism and individual liberty portion of Chief Justice Roberts’ health care case opinion. It illuminates and reinforces the commerce power and limited and enumerated powers arguments he makes there just as the Tenth Amendment and the doctrine of federalism more generally illuminate and reinforce the commerce power and the doctrine of limited and enumerated powers in constitutional law and doctrine. It also answers and explains the claims made by the Chief Justice’s critics on and off the bench that his opinion and similar arguments made by like-thinking lower court …

Full Faith And Conflict Of Law: The Peculiar Legacy Of Legal Federalism, Sheldon D. Pollack

Sheldon D Pollack

The new constitution crafted by the delegates to the Constitutional Convention of 1787 was a major improvement over its predecessor (the ill-fated Articles of Confederation), especially in concentrating greater political authority at the center of the confederation, it imposed a flawed constitutional structure on the new regime based on the same untenable proposition that undermined the national government of the Confederacy—namely, that it was possible to preserve the states as separate “sovereign” political organizations within the political union. In adopting a federal constitutional structure for the new republic (as opposed to a “consolidated” or “unitary” government), the Founders institutionalized a …

Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally (A Response To Aziz Huq), Erin Ryan

Erin Ryan

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

Campaign Finance, Federalism, And The Case Of The Long-Armed Donor, Todd E. Pettys

Todd E. Pettys

In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his opinion for the plurality by declaring that "[t]here is no right more basic in our democracy than the right to participate in electing our political leaders." Retired justice John Paul Stevens has argued that the Court's ruling in McCutcheon is "a grossly …

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky

Todd Grabarsky

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in …

Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan

John R Ablan

When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …

Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello

Adam Lamparello

Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …

Teaching The Affordable Care Act (Obamacare) Case, Corey A. Ciocchetti

Corey A Ciocchetti

The ObamaCare case is one of the most important Supreme Court decisions in modern time. Even though it contains detailed constitutional law issues and is nearly 200 pages long, the case can be taught to undergraduates. These slides help tell the story and can be used to teach the case as well as constitutional law issues such as: (1) enumerated powers, (2) preemption, (3) federalism and more.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds

Brannon P. Denning

Using our now-famous "Five Takes" format, Glenn Reynolds and I analyze NFIB v. Sebelius from five different perspectives: (1) Sebelius as Marbury; (2) Sebelius as Bakke; (3) Sebelius and the "legitimating" power of judicial review; (4) Sebelius as a Thayerian decision; and (5) Sebelius as part of some long game of Chief Justice Roberts'.

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

An Empirical Study Of Obstacle Preemption In The Supreme Court, Gregory M. Dickinson

Gregory M Dickinson

The Supreme Court’s federal preemption decisions are notoriously unpredictable. Traditional left-right voting alignments break down in the face of competing ideological pulls. The breakdown of predictable voting blocs leaves the business interests most affected by federal preemption uncertain of the scope of potential liability to injured third parties and unsure even of whether state or federal law will be applied to future claims.

This empirical analysis of the Court’s decisions over the last fifteen years sheds light on the Court’s unique voting alignments in obstacle preemption cases. A surprising anti–obstacle preemption coalition is forming as Justice Thomas gradually positions himself …

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Richard E. Levy

Robert L. Glicksman

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …

The Genetic Information Nondiscrimination Act Of 2008: A Case Study Of The Need For Better Congressional Responses To Federalism Jurisprudence, Harper Jean Tobin

Harper Jean Tobin

The Genetic Information Nondiscrimination Act of 2008 (GINA) is the first new civil rights statute enacted since the “federalism revolution” of 1995-2001, in which the Supreme Court announced new limitations on congressional authority. Among other things, these decisions invalidated civil rights remedies against states, declaring that Congress had failed to amass sufficient evidence of the need for legislation. Although passed in the shadow of these decisions, GINA’s limited legislative history makes it vulnerable to attack – potentially limiting its protections for millions of state employees. States will likely attack GINA on two grounds: first, that Congress relied only on its …

How The New Federalism Failed Katrina Victims, Erin Ryan

Erin Ryan

This book chapter explores the Katrina response effort to illustrate the governmental decision-making that operates in the shadow of the interpretive model of federalism in use by courts and policymakers. In the American federal system, citizens are of both the United States and the individual states in which they reside, and subject to the respective laws of each. The Constitution enumerates those powers under which the federal government is authorized to make law, and the states may regulate in any area not preempted by legitimate federal law. Yet the fact that Americans are citizens of two separate sovereigns does not …

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Erin Ryan

As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …

The Enumerated Powers Of States, Robert G. Natelson

Robert G. Natelson

This article lists and discusses the powers reserved exclusively to the states, according the representations made to the ratifying public during the debates over the U.S. Constitution.

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …